By Mary Ellen Schill and Sara J. Ackermann
June 15, 2020
Today the U.S. Supreme Court decided in a 6-3 decision that Title VII provides protection from discrimination on the basis of sexual orientation and gender identity in the workplace.
Justice Neil Gorsuch and Chief Justice John Roberts joined the four liberal Justices for the majority. Justice Alito, Justice Thomas, and Justice Kavanaugh dissented in lengthy dissenting opinions.
The Court’s decision consolidated three cases argued in October—Gerald Lynn Bostock v. Clayton County, Georgia, No. 17-1618, Altitude Express Inc., et al. v. Melissa Zarda et al., as Co-Executors of the Estate of Zarda, No. 17-1623, and R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al., No. 18-107.
The Court summed up the facts of each case with one simple sentence. In each case a long-time employee was fired after the employee revealed that he or she was homosexual or transgender.
The Supreme Court held “an employer who fires an individual merely for being gay or transgender violated Title VII.” Justice Gorsuch, writing for the majority, stated, “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions that it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” An employer violates Title VII when it “intentionally fires an employee based in part on sex.” Further, there is no escaping the role that intent plays. This analysis was highlighted by the “model employee” Gorsuch refers to in the majority opinion who works for an employer with anti-LGBT views. “A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? … the answer depends entirely on whether the model employee is a man or woman.” Decision making that requires that determination to be made, is prohibited as sex discrimination under Title VII.
The Court further reaffirmed the three “rules” that apply to sex discrimination cases:
- The employer’s classification of the discriminatory act is irrelevant to the determination of discrimination.
- Sex does not need to be the sole or primary cause of the adverse action.
- Employers cannot escape liability by demonstrating that it treats males and females comparably as groups—the analysis is focused on the individual affected.
For more information on the decision, click here to read the full opinion.
This decision will provide Civil Rights Act protections to millions of LGBT employees. Considering over half of the states do not provide protection for sexual orientation or gender identity in state anti-discrimination laws, this decision will have large impacts nationwide. It does however remain to be seen what impact this decision will have on discrimination laws relating to housing and health insurance that have generally relied on Title VII’s definition of sex discrimination.
Special thanks to Nicole Zeman, who took some time away from her bar exam preparation to assist us with this article.
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